AMICUS BRIEF
1 APRIL 2024

1. This amicus brief is filed in support of the pe□□oners in the Complaints in 6 cases in“The Freedom of Marriage For All” Lawsuit. 1 This brief seeks to complement thepe□□oners’ arguments under the Cons□tu□on of Japan, by drawing upon insights fromcompara□ve cons□tu□onal law and interna□onal human rights law. We respec□ully

submit that the cons□tu□onal rights applicable to the present pe□□on – that is, therights of dignity, equality, and autonomy – are integral to other bills of rights in otherCons□tu□ons, as well as to interna□onal human rights trea□es. Cons□tu□onal courts
across the world, and adjudicatory bodies under human rights law, have extensively

considered the applica□on of these rights to the ques□on of same-sex marriage.2 We
therefore submit that a considera□on of interna□onal and compara□ve cons□tu□onal
law will be of assistance towards a just adjudica□on of the present pe□□on.

2. This brief advances the following submissions: (a) interna□onal human rights norms

support the recogni□on of the right of LGBTQIA+ couples to marry; (b) an analysis ofcompara□ve cons□tu□onal law illuminates how the recogni□on of same-sex marriage

advances the Japanese Cons□tu□on’s goals of securing the dignity, equality, andautonomy/privacy rights of all persons; 3 and (c) the judicial branch/courts areappropriate forums to grant the remedies necessary to ensure recogni□on of same-sex

marriage, including a suspended declara□on of invalidity or a reading down of the Civil
Code.

1 Six cases have been filed in The Marriage For All Lawsuit, including: the Complaints dated 14th February 2019,

before Sapporo District Court, Tokyo District Court, Nagoya District Court and Osaka District Court; the Complaint
dated 5th September 2019, before Fukuoka District Court; and, the Complaint dated 26th March, 2021, before
Tokyo District Court.
2 Same-sex marriage means a marriage between two persons of the same legal sex. It therefore includes
marriages between trans and cis couples, such as a trans man whose legal sex is female and a cis woman.
3 In the context of this brief, we use the terms “autonomy”, “personal autonomy” (protected under the JapaneseCons□tu□on) or “decisional autonomy” interchangeably with “privacy”, in consonance with compara□vecons□tu□onal and interna□onal human rights jurisprudence, which views decisional autonomy as a facet of theright to privacy. References to the concept of “privacy” may therefore be understood accordingly.

A. Interna□onal Human Rights Norms

3. The protec□on and recogni□on of LGBTQIA+ rights are deeply embedded ininterna□onal human rights law. Rights to equality, non-discrimina□on, and dignity are
guaranteed by the Interna□onal Covenant of Civil and Poli□cal Rights [“ICCPR”]; mul□ple

UN human rights treaty bodies have affirmed that sexual orienta□on and gender iden□ty

are protected grounds when it comes to the rights to equality and non-discrimina□on.

Ar□cle 23(2)-(4) of the ICCPR guarantees the right to marriage. While tradi□onally thishas not been interpreted to apply to same-sex couples, it is our submission that Ar□cle
23, read with Ar□cles 2 and 26 of the ICCPR requires that access to marriage be

guaranteed to same-sex couples. The Human Rights Commi□ee shared this view in its

concluding observa□ons in its seventh periodic report on Japan, where it recommended

that Japan ensure that same-sex couples can enjoy all rights enshrined in the Covenant,including same-sex marriage based on Ar□cles 2 and 26.4

4. In addi□on, a number of countries around the world have recognised that LGBTQIA+
rights extend to the recogni□on of marriages and/or civil unions. Same-sex marriage isrecognised in thirty-six countries,5 and in every con□nent (other than Antarc□ca). Civil

unions are recognized in a further twelve jurisdic□ons.6 Legal or de facto recogni□onshort of marriage or civil unions exists in at least seven further jurisdic□ons7 – including

the “partnership cer□fica□on system” and the “family-ship cer□fica□on system” in many
4 Human Rights Commi□ee, Seventh Periodic Report of Japan, November 30 2022, paras 10 and 11(b). See:

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5 Netherlands (04/2001); Belgium (06/2003); Spain (07/2005); Canada (07/2005); South Africa (11/2006);
Norway (01/2009); Sweden (05/2009); Portugal (06/2010); Iceland (06/2010); Argen□na (07/2010); Denmark(06/2012); Brazil (05/2013); France (05;2013); Uruguay (08/2013); New Zealand (08/2013); Luxembourg(01/2015); United States (06/2015); United Kingdom (11/2015); Colombia (04/2016); Finland (03/2017); Malta(09/2017); Germany (10/2017); Australia (12/2017); Austria (01/2019); Taiwan (05/2019); Ecuador (07/2019);
Northern Ireland (01/2020); Costa Rica (05/2020); Chile (03/2022); Switzerland (07/2022); Slovenia (07/2022);
Cuba (09/2022); Mexico (12/2022); Andorra (02; 2023); Estonia (01/2024); Greece (02/2024). The Parliament ofThailand passed a same-sex marriage bill on March 27 2024, subject to Senate approval and royal endorsement.
6 Czech Republic (07/2006); Hungary (07/2009); Lichtenstein (09/2011); Croa□a (09/2014); Cyprus (12/2015);
Italy (06/2016); San Marino (12/2018); Monaco 06/2020); Montenegro (07/2021); Aruba (09/2021); Bolivia(03/2023); Latvia (07/2024).
7 Israel (1994); Gibraltar (2014); Japan (01/2019); Hong Kong (06/2019); Cayman Islands (2020); Bermuda (2022);
Cambodia (in approximately 68 communes of 20 provinces). In Nepal, the first same-sex marriage was registeredin November 2023, following an interim order of the Supreme Court; a final judgment of the Court is awaited.

Japanese municipali□es. This shows that the recogni□on of same-sex marriage is notconfined to a par□cular legal tradi□on, a par□cular corner of the globe, or a par□cularkind of society. Instead, there is a growing realisa□on within the global community ofna□ons – of which Japan is a member – that the equal moral standing of LGBTQIA+

individuals is incomplete without enabling them to exercise the full panoply of rights

and freedoms available to the rest of society, including marriage.

5. We therefore submit that the above considera□on of interna□onal human rights norms

provides strong and persuasive reasons for Japan to provide access to marriage forsame-sex couples, on equal and non-discriminatory terms. Doing so would not only beconsistent with Japan’s own Cons□tu□on (for reasons explained below), but would also

ensure that Japanese law is consistent with interna□onal human rights norms.

B. Cons□tu□onal Rights

6. The impera□ve towards the recogni□on of same-sex marriage is underpinned by theunderstanding that such recogni□on advances cons□tu□onal rights, or commitments, toequality, dignity, and privacy. These rights find expression in Ar□cles 13 (dignity), 14,para 1 (equality), 24, para 1 (right to marriage), and 24, para 2 (individual dignity as afounding principle underlying marriage) of the Japanese Cons□tu□on. We respec□ully
submit that the manner in which other cons□tu□onal courts have interpreted theserights in the context of same-sex marriage provide persuasive grounds for a similar

understanding to be adopted in the case of similar provisions within the JapaneseCons□tu□on.

7. The ins□tu□on of marriage is one of the most important social ins□tu□ons in existence.
The ability – and the choice – to par□cipate in the ins□tu□on of marriage is both of

intrinsic value, as well instrumental towards obtaining a bouquet of other valuable
social rights (discussed below). Intrinsically, marriage is a source of social/community

valida□on of a rela□onship. Social recogni□on is a marker of equal moral membershipin society; more tangibly, social recogni□on offers a sense of security, especially tovulnerable couples and partners. Instrumentally, marriage is a gateway to a number ofother crucial legal en□tlements, such as the right to found a family and enjoy family life,

access to housing, health-care and pension benefits, inheritance of property, adop□on,social security, hospital and prison visita□on rights, insurance, and – in some contexts –tax arrangements.8 The brief of the pe□□oners sets out these en□tlements in somedetail.

8. Consequently, marriage is not simply a benefit that is conferred by the State, and which

can be granted – or withdrawn – at the discre□on of the State. In modern society,marriage – and marital status – for those who choose it, is a vital source of dignity,
fulfilment, and self-respect, and the ability to have and enjoy a family life. It is important
to stress that part of what makes access to the social ins□tu□on valuable is the ability
to choose: that is, whether of the opposite sex or of the same sex, couples can choose

whether or not to marry. We respec□ully submit that the Cons□tu□on grants them thatchoice.

9. Dignity – which is protected under Ar□cles 13 and 24, para 2 of the JapaneseCons□tu□on – is understood in compara□ve cons□tu□onal jurisprudence in two,complementary senses. First, to treat an individual with dignity means to treat them –and their choices – as “ends” in themselves, worthy of respect and concern, and not as
merely as a “means.” In the context of the present case, dignity compels the State andsociety to treat an individual’s choice of spouse with equal concern and respect,regardless of sexual orienta□on or gender iden□ty. Secondly, “dignity” in a posi□ve sense

requires the State to take specific ac□on in order to ensure that all individuals possess
the capabili□es necessary to access a base level of physical, psychological, material, andsocial well-being. In the present case, given the importance of the ins□tu□on of

marriage in modern society as a source of both social well-being (i.e., in being

recognised as an individual worthy of accessing the ins□tu□on on equal terms, and not
being treated as an outsider) as well as material well-being (as a gateway to many otherrights, discussed below), the recogni□on of same-sex marriage is essen□al toguaranteeing individual dignity in its second sense as well. See Rosalind Dixon and

8 See, for example, Ghaidan v Godin-Mendoza [2004] UKHL 30; 3 WLR 113; Satchwell v President of Republic ofSouth Africa and Another (CCT45/01) [2002] ZACC 18; 2002 (6) SA 1; 2002 (9) BCLR 986 (25 July 2002).

Martha C. Nussbaum, “Abor□on, Dignity, and a Capabili□es Approach” in Beverley

Baines, Daphne Barak-Erez and Tsvi Kahana (eds), Feminist Cons□tu□onalism: Global
Perspec□ves (Cambridge University Press, 2012) 64; Rosalind Dixon and Martha C.

Nussbaum, “Children’s Rights and a Capabili□es Approach: The Ques□on of Special
Priority” (2012) 97(3) Cornell Law Review 549; Martha C. Nussbaum, “Capabili□es as

Fundamental En□tlements: Sen and Social Jus□ce” (2003) 9(2–3) Feminist Economics
33.
10. A leading global exposition of these ideas is found in Minister of Home Affairs v Fourie,[2005] ZACC 19, where the Constitutional Court of South Africa9 highlighted both these

aspects of dignity as underpinning the constitutional imperative to recognize same-sex

relationships, noting that the failure by the law to recognize same-sex relationships“represents a harsh if oblique statement by the law that same-sex couples are outsiders,
and that their need for affirmation and protection of their intimate relations as humanbeings is somehow less than that of heterosexual couples. It reinforces the wounding

notion that they are to be treated as biological oddities, as failed or lapsed humanbeings who do not fit into normal society, and, as such, do not qualify for the full moral

concern and respect that our Constitution seeks to secure for everyone”, thereby
violating their entitlement to equal dignity.10 In addition, it noted that marriage carries

a range of tangible benefits, including material benefits and protection in the event ofrelationship breakdown, which could be considered necessary for the protection of full

human dignity, and capabilities.

11. When the legal regime excludes a group of people from par□cipa□on in a valuable social
ins□tu□on purely on the basis of ascrip□ve characteris□cs, it sends a public message ofsubordina□on.11 Furthermore, by virtue of all the other rights that marriage is a

9 South Africa is one of the leading jurisdic□ons on civil, poli□cal, and social rights, with its judgments being

influen□al across the African con□nent, the US and Canada, Europe, and India, among others, South African
judgments also engage deeply with, and are informed by, interna□onal human rights norms, and have in turncontributed to the evolu□on of rights doctrine within interna□onal bodies.
10 Minister of Home Affairs v Fourie [2005] ZACC 19, at para 71.
11 Fourie (supra), at para 72.

gateway to, exclusion from the ins□tu□on has a direct and immediate consequence on

individual well-being, which is an essen□al component of dignity.12

12. With respect to equality, the Cons□tu□onal Court noted that:

Equality means equal concern and respect across difference. It does notpresuppose the elimina□on or suppression of difference. Respect for humanrights requires the affirma□on of self, not the denial of self. Equality therefore
does not imply a levelling or homogenisa□on of behaviour or extolling one
form as supreme, and another as inferior, but an acknowledgement andacceptance of difference. At the very least, it affirms that difference should not
be the basis for exclusion, marginalisa□on and s□gma. At best, it celebrates thevitality that difference brings to any society. (para 60)
13. The Court went on to draw on the reasoning of Judge Sachs in previous cases (seebelow) to establish the close connec□on between dignity and equality, and, with theirreasons explained above, noted that exclusion from the ins□tu□on of marriage is aviola□on of the right to equality. Moreover, this exclusion is based purely on ascrip□vecharacteris□cs – i.e., sexual orienta□on – and is therefore impermissible.13
14. Judge Sachs had detailed the manner in which the rights to dignity and equality also
overlap and reinforce each other in this context in his concurring opinion in Na□onal

Coali□on for Gay and Lesbian Equality vs Minister for Jus□ce, 1998 ZACC 15, which
decriminalised same-sex rela□ons. The observa□ons, however, apply equally to
exclusion from the right to marry:

One of the great gains achieved by following a situa□on-sensi□ve human rights
approach is that analysis focuses not on abstract categories, but on the lives as lived
and the injuries as experienced by different groups in our society. The manner inwhich discrimina□on is experienced on grounds of race or sex or religion or disability
varies considerably - there is difference in difference. The commonality that unites
them all is the injury to dignity imposed upon people as a consequence of theirbelonging to certain groups. Dignity in the context of equality has to be understoodin this light. The focus on dignity results in emphasis being placed simultaneously on
context, impact and the point of view of the affected persons. Such focus is in fact
the guarantor of substan□ve as opposed to formal equality.
At the heart of equality jurisprudence is the rescuing of people from a caste-likestatus and pu□ng an end to their being treated as lesser human beings because
12 Fourie, (supra), at para 73.
13 Fourie (supra), at para 114.

they belong to a par□cular group. The indignity and subordinate status may flowfrom ins□tu□onally imposed exclusion from the mainstream of society or else frompowerlessness within the mainstream; they may also be derived from the loca□onof difference as a problema□c form of deviance in the disadvantaged group itself, as
happens in the case of the disabled. In the case of gays it comes from compulsion todeny a closely held personal characteris□c. To penalise people for being what they
are is profoundly disrespec□ul of the human personality and violatory of equality.14
15. Finally, as noted above in Footnote 2, the global understanding of the cons□tu□onal

right to privacy – in its sense of a right to decisional autonomy – finds an echo in ar□cle

13 of the Japanese Cons□tu□on, as a part of the right to pursue happiness. Addi□onally,
it is closely connected to, and in some cases interchangeable with, the right to marry,and related equality-based fundamental interests.15 Further, the right to privacy has, as
one of its essen□al components, a right to decisional autonomy: that is, a right to makein□mate and private decisions without being subjected to a legal or social cost for suchdecisions. The choice of a life partner is one of the most in□mate choices that anindividual can make, over the course of their life□me. Under a legal regime of exclusionfrom the marital ins□tu□on, however, this choice is treated as being of less value underthe eyes of law if one’s partner belongs to the same sex. This is, therefore, a direct

infringement of the right to privacy, understood in terms of decisional autonomy andthe pursuit of happiness. To reiterate, we respec□ully submit that the sameinterpreta□on can be made in the context of the Japanese Cons□tu□on, as it is generally
understood that a right to privacy and a right to decisional autonomy are guaranteed

under Ar□cle 13 of the Japanese Cons□tu□on, while the Japanese Cons□tu□on does not
explicitly s□pulate these rights.

16. To elaborate, decisional autonomy is a key part of the underpinning to a right to marryfor same-sex couples. It also underpins the importance of understanding marriage as a

choice same-sex couples can make: the right in ques□on is as much a right to marry, as
not to marry, as a fundamental expression of individual’s personal iden□ty and selfrealiza□on. This was recognised, for example, by the Supreme Court of Canada in M vsH, [1999] 2 S.C.R. 3, where, in holding that the exclusion of same-sex couples from a

14 See Na□onal Coali□on for Gay and Lesbian Equality v Minister for Jus□ce, 1999 ZACC 15, at paras 126, 129.
15 See, for example, Loving v. Virginia, 388 U.S. 1 (1967); Ghaidan (supra).

spousal support regime was uncons□tu□onal, the Court also ensured – in cra□ing its

remedy – that same-sex couples would retain the choice of “op□ng out” if they sodesired. The Court noted that any interpreta□on of the law must respect the rights ofindividuals to “choose to order their own affairs in a manner reflec□ng their own

expecta□ons.”16

17. It is also important to note that the viola□on of the rights to equality, dignity, and privacy

can be caused both by State ac□on, but also by omission – including legisla□ve omission.
In Vriend vs Alberta, [1988] 1 S.C.R. 493, the Supreme Court of Canada held that theexclusion of sexual orienta□on as a protected ground of discrimina□on under theAlberta Individual Rights Protec□on Act (IRPA)17 violated the Canadian Charter of Rights
and Freedoms,18 as it effec□vely precluded an individual from seeking a legal remedy
against discrimina□on. IRPA was a general an□-discrimina□on statute, but as originallydra□ed, did not expressly list sexual orienta□on as a prohibited ground of discrimina□on.
The Court in Vriend, supra, also held that this omission represented an uncons□tu□onal

viola□on of the equality rights of LBGTQI+ Canadians.
18. While Vriend, supra, was not concerned with the issue of marriage, its logic is squarely

applicable to a case where the Civil Code prohibits – or is interpreted to prohibit – same­sex couples from accessing the ins□tu□on of marriage on equal terms with the rest ofsociety.

19. The above arguments also make clear why a “differen□al” regime of recogni□on – suchas the partnership cer□fica□on system in certain Japanese municipali□es, or a “civil
union” regime, as followed in certain other countries – is insufficient. In Lewis vs Harris,
188 N.J. 415 (2006), the New Jersey Supreme Court held that the exclusion of same-sex

couples from the marital ins□tu□on was uncons□tu□onal, but allowed the anomaly to

16 See M vs H [1999] 2 S.C.R. 3, at paragraph 14.
17 The Individual Rights Protec□on Act is a civil rights statute enacted by the Canadian State of Alberta, which

imposes obliga□ons of non-discrimina□on on both public and private par□es. It applies to various contexts, suchas employment, tenancy, equal pay, etc.
18 The Canadian Charter of Rights and Freedoms is a bill of rights, which is a part of the Cons□tu□on of Canada.
The Charter protects various rights, including equality and non-discrimina□on rights, linguis□c and cultural rights,
minority and indigenous, the freedom of speech, conscience, and belief, etc.

be corrected through offering “civil unions” to same-sex couples. In a powerful

dissen□ng opinion, three jus□ces noted that:

We must not underes□mate the power of language. Labels set people apart assurely as physical separa□on on a bus or in school facili□es. Labels are used toperpetuate prejudice about differences that, in this case, are embedded in thelaw. By excluding same-sex couples from civil marriage, the State declares that it
is legi□mate to differen□ate between their commitments and the commitmentsof heterosexual couples. Ul□mately, the message is that what same-sex couples
have is not as important or as significant as “real” marriage, that such lesser
rela□onships cannot have the name of marriage. (page 467)
20. This dissent subsequently became the prevailing view in the United States Supreme
Court decision in Obergefell vs Hodges, 576 U.S. 644 (2015), which specificallyrecognised same-sex marriage under the US Cons□tu□on, on grounds of privacy, dignity,and equality. Other cons□tu□onal courts, across the world, have also held along similarlines. In Sunil Babu Pant and Ors vs Nepal Government and Ors, Writ No. 917 of 2007
NJA Law Journal (2008), 262, the Supreme Court of Nepal held that “looking at the issue

of same-sex marriage, we hold that it is an inherent right of an adult to have maritalrela□on with another adult with his/her free consent and according to his/her will” (pp.

285-286). The Court based this on the finding that the cons□tu□onal guarantees of nondiscrimina□on, equality, and dignity required that LGBTQIA+ individuals be able to enjoy
the full panoply of rights in society, as enjoyed by heterosexual couples. While in that

judgment, the Supreme Court of Nepal directed the government to set up a commi□ee
to examine the modali□es by which to implement same-sex marriage; however, on thegovernment’s failure to do so, on 27th June 2023, the Supreme Court passed an interim

order direc□ng the government to register same-sex marriages; following this, inNovember 2023, the first Nepali same-sex couple registered their marriage.

21. Similar reasoning may also be found in the judgment of the Cons□tu□onal Court of

Taiwan in Judicial Yuan Interpreta□on No. 748 of May 24, 2017. The Cons□tu□onal Court
ruled that insofar as the marriage provisions of the Taiwanese Civil Code did not allow

persons of the same sex to marry, they violated both the right to equality and thefreedom to marry. In par□cular, the Cons□tu□onal Court held that the decision of whom
to marry (regardless of sex) was an essen□al facet of decisional autonomy and humandignity. The Cons□tu□onal Court granted the legislature two years to determine how toeffectuate this right in law (failing which, same sex couples would be en□tled to havetheir marriages registered under the Civil Code). The Taiwanese legislature compliedwith the judgment, an enacted legisla□on to authorise same-sex marriages on 17 May,2019.
22. In La□n America, the regional Inter-American Court of Human Rights issued an advisory
opinion in 2017 that same-sex marriage was protected under the right to family life, andequality and non-discrimina□on, under the American Conven□on on Human Rights (OC-

24/2017). Following this, the Cons□tu□onal Court of Costa Rica – the government that
had approached the IACHR for its advisory opinion – also ruled that the exclusion of
LGBTQIA+ couples from the ins□tu□on of marriage was uncons□tu□onal, and granted

the legislature eighteen months to remedy the defect in the law. Costa Rica accordingly

legalised same-sex marriage. Similarly, the Cons□tu□onal Court of Colombia legalised
same-sex marriages on the basis of a right to marry without discrimina□on, and theSupreme Court of Mexico held that it was uncons□tu□onal for the legislature to restrict

the defini□on of marriage to heterosexual unions.

23. We therefore submit that courts belonging to different legal tradi□ons and different
social contexts have, remarkably, ar□culated very similar reasoning: that the exclusionof LGBTQIA+ couples from the ins□tu□on of marriage is a viola□on of their rights toequality and non-discrimina□on, dignity, and decisional autonomy. While the nature of
the remedy may vary (see below), courts have recognised that, given the social andmaterial valence of the ins□tu□on of marriage in modern socie□es, LGBTQIA+ couples
cannot be said to enjoy the full panoply of rights and freedoms in society, on equal termswith other individuals, without extending to them the right – and the choice – to accessthe ins□tu□on of marriage.

24. It is some□mes argued that the recogni□on of same-sex marriage will go against deeply
held religious beliefs. To this, two responses may be made. The legal recogni□on ofsame-sex marriages focuses upon the civil status conferred by the legal regime of

marriage (this is borne out by the fact that in Japan, marriages are regulated under theCivil Code). It does not seek to displace religious understandings of what cons□tutes
marriage for the purposes of religion. Thus – and secondly – the legal recogni□on ofsame-sex marriage does not compel the performance of religious ceremonies that haveto do with sanc□fying or blessing marriages (see, e.g., legisla□on in Australia). Religious

convic□on, therefore, ought not to be the basis of restric□ng or denying the right tomarry to same-sex couples. As noted above, this is underscored by the fact that, inJapan, marriage is a ma□er of civil rather than religious law.

C. The Role of the Judiciary

25. In the countries where same-sex marriage is recognised, there have been different paths

that have led to recogni□on. In countries such as the Netherlands, Uruguay, and Andorra(among others), recogni□on has been achieved through legisla□on. In Ireland,

recogni□on was achieved through a successful referendum to amend the Cons□tu□onof Ireland. However, in a number of countries, such as the United States, Brazil, Ecuador,and South Africa, recogni□on of same-sex marriage has come about through judicial
rulings, rendered in cons□tu□onal challenges to laws that prohibited (or wereinterpreted to prohibit) same-sex marriages.19 In countries such as Austria, Germany

and the United Kingdom, while recogni□on has come about through legisla□on, courts
have played an important catalysing role through interpre□ng legisla□on in order toextend various legal benefits to LGBTQIA+ couples (see below).20

26. The role of courts is par□cularly important when there is a “clogging” in the poli□cal

process, due to which legal recogni□on of the rights of certain historically marginalised
groups fail to keep pace, or be fully responsive to, evolving societal a□tudes. This iso□en due to the onerous and □me-consuming nature of the legisla□ve process, which

ensures that priority is not accorded to the rights-based claims made by majori□es,

19 As noted above, following an interim order of the Supreme Court of Nepal in June 2023, Nepalese authori□eshave been directed to register same-sex marriages (and have done so in November 2023). A final judgment of
the Court is awaited.
20 We categorise the countries in the last two sentences based on whether or not a judicial verdict had the legal
effect of recognising same-sex marriage. For example, in the United States, the Supreme Court judiciallyrecognised the right to same-sex marriage. In the United Kingdom, on the other hand, in a series of cases, thejudiciary progressively interpreted gendered laws in gender-neutral terms (for example, in the context of rent),
thus crea□ng an enabling atmosphere for the legislature to create a legal regime recognising same-sex marriages.

especially if there is no explicit or immediate majoritarian poli□cal support. Acrossvarious countries, the rights of LGBTQIA+ individuals have o□en been an example of thisphenomenon. In such a situa□on, the role of courts is to effec□vely protect rights andreflect evolving democra□c a□tudes by overcoming “democra□c burdens of iner□a”(Rosalind Dixon, Responsive Judicial Review, OUP 2023; William Eskridge, “Foreword:
The Marriage Cases – Reversing the Burden of Iner□a in a Pluralist Cons□tu□onal

Democracy” (2009) 97(6) California Law Review 1785). A rights-protec□ng judicial
decision, thus, will enjoy both legal and poli□cal legi□macy.

27. There may also be a concern that there is a gap between declaring the existence of an
equal right to marriage, and gran□ng an appropriate remedy to realise this right, which
involves an extensive rewri□ng (or crea□on) of the legal regime. This concern, however,can – and has been – addressed by courts, in various ways outlined below.

28. Many courts around the world have recognised same-sex marriage under theirrespec□ve na□onal cons□tu□ons. Courts have also recognised a range of rights that are

incidental to, or flow from, the recogni□on of same-sex unions (involving housing,inheritance, adop□on, and so on). As the examples cited above show, these courts
belong to diverse legal tradi□ons, and to diverse social and cultural contexts. In

recognising these rights, these courts have been respec□ul of the separa□on of powers,

and have not sought to replace or subs□tute judicial wisdom for the legisla□ve process.
Rather, their judgments have been founded on the cons□tu□onal rights to equality,
dignity, and privacy – rights that (at least in the case of dignity and equality) are also

directly guaranteed under the Japanese Cons□tu□on. These courts have also opted fora range of remedies in order to ensure that their declara□ons are effec□ve, some ofwhich are outlined below.

29. The judgment of the United States Supreme Court in Obergefell vs Hodges, 576 U.S.
644 represents a straigh□orward example. The Supreme Court held that thefundamental right of marriage was guaranteed by the Equal Protec□on and Due Processclauses of the US Cons□tu□on. It followed that the denial of the right of marriage tosame-sex couples by the State was uncons□tu□onal. All the states of the US weretherefore required to recognise – and perform – same sex marriages, on equal terms

and condi□ons with the marriages of opposite-sex couples.

30. However, where there exists an exis□ng law, or a statute, that creates a regime ofbenefits or en□tlements for couples, courts have sought to interpret it in a way that thesaid benefits are extended to same-sex couples. In this context, the judgment of the UK

House of Lords in Godin vs Ghaidan Mendoza, [2004 UKHL 30], is instruc□ve. The
ques□on in that case was whether same-sex couples could avail of the provisions of theRent Act of 1977. The phrase under the Rent Act was “as his or her wife or husband.”The House of Lords affirmed the Court of Appeal’s interpreta□on of this phrase to mean

“as if they were his wife or husband.” Under this interpreta□on, same-sex couples were
included within the ambit of the Act.

31. The judgment in Godin, supra, is important in that it underscores that the courts may

not always be required to strike down a statute, or to create a legal regime of marriage(or other rights) for same-sex couples. In Godin, supra, the House of Lords held that the

Court will strive to interpret a law in order to make its terms consistent with the Human

Rights Act (a “Human Rights compliant reading”). Where there exists a wri□enCons□tu□on – as in the case of Japan – this may be called a “cons□tu□on-compliant
reading.” The Court will be mindful of only two caveats: that its interpreta□on isconsistent with the underlying “thrust” of the statute; and that the relief sought iswithin the ins□tu□onal competence of the Court.

32. Indeed, the provisions of the Japanese Civil Code – which do not explicitly outlaw same­sex marriage, but use the gendered terms “husband” and wife” – are strikingly similar
to the provisions that were at issue before the House of Lords in Godin, supra. Likewise,

the Japanese Cons□tu□on guarantees fundamental rights – the rights to equality, dignity,and privacy – in a fashion similar to the UK Human Rights Act, and the European

Conven□on of Human Rights, which is the inspira□on from the Human Rights Act. The
judgment in Godin, supra, therefore cons□tutes valuable precedent on the ques□on of
securing the rights of same-sex marriage within an exis□ng statutory and cons□tu□onal

scheme.

33. Finally, an alterna□ve structure of remedies is offered by the South AfricanCons□tu□onal Court in Minister for Home Affairs vs Fourie, [2005] ZACC 19(Cons□tu□onal Court of South Africa). Here, the South African Cons□tu□onal Court wasconsidering the Marriage Act, which also used the terms “wife” and “husband”, and had
been interpreted by the courts to be limited to marriages of opposite-sex couples. The

Cons□tu□onal Court found the exclusion of same-sex couples from the scope of the
Marriage Act to be uncons□tu□onal. However, it issued what is known as a “suspended

declara□on of invalidity”: that is, it gave Parliament one year to correct the “defect” inthe law, before the declara□on of uncons□tu□onality would come into effect. In

response, the South African parliament amended the Marriage Act to allow same-sex

couples to marry, thus legisla□vely curing the cons□tu□onal defect in the law.

34. The judgment in Fourie, supra, therefore represents a dialogue between the judiciaryand the legislature. While the Court maintains its role of scru□nising the law forcons□tu□onal validity, and by declaring that same-sex couples have a right to marry, thelegislature then has the opportunity to realise this right through legisla□ve changes, ina □me-bound manner. The protec□on of same-sex couples’ right to marry is secured asa result of this dialogue, and therefore has both legal and poli□cal legi□macy.

Rosalind Dixon
Professor, University of New South
Wales
Director, Gilbert + Tobin Centre of
Public Law

Gautam Bhatia
Advocate, New Delhi
Adjunct Professor, Jindal Global
Law School

SIGNATORIESSky McKenney

LLB Graduate

Javed Dar

Student, Kashmir University Law Department

Medha Trivedi

Jindal Global Law School, India

Ashwani Kumar Singh

Assistant Professor of Law, Vinayaka Mission's Law School, Chennai

Surbhi Karwa

Jeronimo Lau Alberdi

University of New South Wales
Doctor of Juridical Science (S.J.D.) Candidate, University of Virginia
School of Law

Thulasi K. Raj

Supreme Court of India

Ojasvi Gupta

Law Faculty, BHU

Gursimran Kaur BakshiSouth Asian University, New Delhi

Suvadeep Subuddhi

Amex Law College

Rohin Bhatt

Advocate, Supreme Court of India

Deepak Joshi

Advocate, practicing in India

Jhuma Sen

Advocate, Supreme Court of India

Harikartik Ramesh

Assistant Lecturer, OP Jindal Global University

Aishwarya Sudhir

Karnataka State Law University

Ichchhit Goswami
Vaivab Das

OP Jindal Global University
Fulbright Nehru Doctoral Research Fellow, University of California,
Berkeley and Indian Institute of Technology Delhi

Kirill Koroteev

Agora International Human Rights Group

Hunney Mittal
Raja Venkata Krishna
Dandamudi
Professor Maheswar
Satpathy

Guru Gobind Singh Indraprastha University; Advocate

Aastha Khanna

Advocate, High Court of Delhi

Aishwarya Singh

Lecturer, Jindal Global Law School, India

Mihir Rajamane

LLM Candidate, King’s College London

Ghazal Bhootra

Law Graduate, NMIMS School of Law

Sunishth Goyal

Assistant Professor, NALSAR University of Law

Sonali Gupta

Law Graduate, O.P. Jindal Global University

Samrit Kharel

Harvard Law School

Kevin James

Harvard Law School

Nitish Raj

Advocate, Supreme Court of India; JGLS

Harvey Bilang
Professor Anat
Scolnicov

LLM Candidate, Harvard Law School

PhD in Law Candidate, Faculty of Law, University of Cambridge (UK)UCL London, UK/Utkal University, Bhubaneswar, Odisha, India

University of Winchester, United Kingdom

Prerna Singh

Advocate, Supreme Court of India

Dr Eleni Frantziou

University of Durham

Kaainat Pundir

University of Cambridge

Dolashree Mysoor

Associate Professor, O.P. Jindal Global University

Vishwajeet Deshmukh

Harvard Law School

Komal Agarwal

O.P. Jindal University, Jindal Global Law School

Sonal K. Chopra

Jindal Global Law School

Umang Shah

AdvocateRev. Paritosh Joshi

Advocate, Allahabad High Court

Irene Parra Prieto

ITAM

Daniel Bogea
Niyati Prabhu, Law
Student

University of New South Wales

Neil Modi

Georgetown University Law Center

Dr. Amal Sethi

University of Hamburg, Germany

Ashwin Gupte

Graduate Lawyer at Corrs Chambers Westgarth

Ayesha Bhalla

University of New South Wales

Prakhya CV, Advocate

Jindal Global Law School

The National University of Advanced Legal Studies, Kochi, India